Christopher Back (WA, Liberal Party) Share this | Hansard source

I rise to contribute to the discussion on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. I join the disappointment expressed by our deputy leader, Senator Brandis, that when this legislation went into the House of Representatives it had the support of the Labor government and the coalition. It appears that it was only when it arrived here in the Senate that the amendment, which is now the question of so much discussion and so much disappointment from this side of the chamber, has started to dominate the discussion.

There is no argument that there should be no circumstance in Australia in which we would see discrimination based on sexual orientation. As we know the bill follows from the government's abandonment of its Human Rights and Anti-Discrimination Bill earlier this year, the effect of which was to adopt the recommendations of coalition senators. I think you, Madam Acting Deputy President, have been very much involved in the deliberations and discussions that have gone on in this particular area. It is this amendment to extend the exemption to religious organisations and others that has made it the subject of so much discussion. When we saw the original legislation on the removal of discrimination on the basis of sexuality, anybody in this chamber would surely have accepted it. As I recall, it was the position that the coalition took to the election in 2010. Earlier speakers have referred to different aspects of sexual orientation, which is defined as a person's orientation towards persons of the same sex or different sex or the same and different sex. Gender identity is defined as gender related identity, appearance or mannerisms of the other gender. Intersex status is defined as the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male—or a combination of both or, indeed, neither of the two.

The prohibition on discrimination is being extended to areas in the workplace—including employment, superannuation, contract workers, partnerships and the like—and to education, to goods and services, to accommodation, to clubs and to the administration of Commonwealth laws and programs. We would naturally support all of these. I join Senator Brandis in his comments that, to this point, the coalition supported the bill in the House of Representatives and would support it here in the Senate. However, the position of the coalition, which I share strongly, would be to oppose the foreshadowed amendments and, should those amendments proceed, then we would have no option but to oppose the bill itself.

I listened very carefully to the contributions of Senators Wright, Pratt, Humphries and more latterly Senator Boyce. I would describe myself as an active member of the Catholic faith, a regular church goer, a person who, for the last 11 years leading up to 4 February 2012, was the carer of an aged mother who went from being a highly-independent, very intelligent woman to suffering a major stroke. I, like many other Australians, found myself in the position of going from knowing nothing about aged care—or the need to guide an aged parent into aged care—to becoming an expert within a matter of weeks. Indeed, I had to fight the case through the medical system for her to be assessed because initial shock, anger and disappointment all led to a determination that my mother's case should be the subject of intense examination by the medical profession before a permanent decision was made that she possibly could not recover from that left-side stroke—and, indeed, she did not.

I make that point because of the observations made by my Senate colleagues on the circumstance of the right of religious organisations. My mother then spent time, from February 2002 until 4 February 2012, in the Southern Cross Care facility of Margaret Hubery House in Perth, run by the Knights of the Southern Cross—a Catholic aged-care institution. If Senator Boyce were here, I would say to her that, in the entire time that I had responsibility as the primary carer for my mother while she was in that facility and as a person who engaged actively with the management of the Margaret Hubery facility and Southern Cross Care homes, I never at any time saw a circumstance of discrimination against any resident. There was a wide range of residents. There were aged sisters and aged brothers and priests. There were people of every or no domination. It was not my business to inquire into their gender identity, sexual orientation or intersex status, if they had one, but I can say that at no time have I ever observed any discrimination of any type.

Having said that—and this is where I do take issue with Senator Pratt—I respect the right of religious organisations to find themselves beyond the reach of discrimination law of the type that is being proposed in this amendment. I believe there is a right of religious practice. There is a right of religious worship. This has got to be respected and protected in the same way as the rights of those about whom we are speaking this evening. This is the sad irony of the bill and its amendments. The bill is calling for a removal of discrimination on the basis of sexual or other identity or intersex status, and yet at the same time we are demanding the end of this discrimination we seem to be accepting a scenario in which groups such as religious organisations with regard to the aged-care sector must be bound up in the same voice as those against whom we are pleading for discrimination to be removed.

I believe, as has been said here this evening, that you cannot have freedom of religion if you turn around and have legislation which imposes on a church or a religious institution something that is at variance with its very tenets or rules. If there is a fault with those, it should be examined. It is dangerous to say that, simply because there is Commonwealth government support for an organisation, such as the religious organisation in the case I referred to, the Knights of the Southern Cross, you can at the stroke of a pen remove the independence and capacity of that religious organisation to preserve and respect the tenets upon which it was based. I would argue that very, very actively. It is not up to the state to tell churches what they can or cannot believe.

We have a long tradition in this country of the involvement of churches, particularly in education, health, aged care and, more latterly, complementary services such as mental health services, disability services, pregnancy health services and a whole range of others. There may be an argument on the part of some people to say, 'If they receive some federal funding or state funding, then they must automatically come under the auspices of the state or federal government.' I dispute that. I go back to, for example, in my own state of Western Australia, the very earliest days of our colony when in the education space the Mercy nuns arrived in early January. It must have been stinking hot when those Irish nuns arrived in Perth in early January. Within seven days of them arriving, using as desks the very packing cases that their belongings came in, under a tree in Victoria Square they were already commencing the education of young women, including young Aboriginal girls. That is the rich tradition of churches and other religious organisations.

I know we are focusing particularly this evening on the aged-care discipline, but, just because we now have a circumstance in which there is state and federal funding of education, does that mean it must be totally dominated by the state or federal government? When I went through school there was no support at all for Catholic education from state or federal sources. Yet that did not stop the rich development of our education. Of course, in many cases the only reason we got into the professions and, indeed, probably into the positions we find ourselves today is that the sacrifices of those religious organisations and of our own families and parents allowed us that opportunity. I do not think it equates to a circumstance in which we say in this place tonight that, just because there is some federal and/or state funding in the circumstance of aged care, the legislation that we are proposing with regard to sex discrimination should find its way automatically into those areas associated with aged care as it is provided by religious and like organisations.

Religion is a universal right under article 18 of the Universal Declaration of Human Rights. I ask my colleagues to remember and respect that when we vote on this issue this evening. I plead, as Senator Brandis did, that in the dying days of this parliament we can put to one side an amendment that is divisive, an amendment that is going to cause this Senate to divide along party lines. It is a fact that we all—the Labor Party, the Greens, I understand the Independents, Senator Madigan and the coalition members—support the bill. But do not send us again to a circumstance of division over something that did not even find its way into the House of Representatives when the bill was debated. This amendment has been introduced in this place.

I will not join the debate—I will not lower myself to the debate—about the reasons or the motives of the Labor government in introducing this amendment. I just plead for common sense on an issue as important as this one, that we could actually allow ourselves to have universal support for the bill right across this chamber. I plead with the government: withdraw this amendment and do not require us to oppose it and therefore move to oppose the bill, should the amendment fail.